OA566: Explosive Lawsuit Against the NFL Details Racial Bias

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Open Arguments, this is episode 566, I'm Thomas, that's Andrew. How's it going?

0:01:25 Andrew: It's going great, Thomas. How are you?

0:01:27 Thomas: Doing well, I really can't wait to get your analysis of this Flores case against the NFL, this suit, it's big news and not Got some announcements. So Q&A 51, we, that happened, that was great fun. Uh, I tried to trick the patrons by sending out the wrong link and I fixed it, sorry about that, apologies yeah Yeah, we got everybody to the right place eventually, um, that, that high-quality audio is out on the Patreon feed, of course.

0:01:35 Andrew: Yeah, it really is.

0:01:45 Andrew: You succeeded in tricking the patrons. Yep. Couple other things that are coming up. Everybody's favorite ace associate, Morgan Stringer, is going to be back for Tuesday's lawsuit. A lot of you have been asking about the Cardi B defamation lawsuit. And I barely know who Cardi P is. So we had to we had, had to bring in, we had to bring in our expert, Morgan Stringer, on pop law, she'll be back on Tuesday.

0:02:11 Thomas: Yeah, same here. All right. Well, let's get to our main segment today.

0:02:23 Clip: Down the law, down the law.

0:02:27 Thomas: Coach, I guess ex-coach now, my ex-Miami coach, Brian Flores is suing the NFL. There's a lot in here. There's allegations. It's mainly, you know, the thrust of it is about, you Know, racial discrimination and hiring coaches. That's long been an issue with the NFL. We had the Rooney rule. We got all this stuff that I'm sure you're going to take us on a deep dive of. There's Also some claims that the Miami owner offered to pay him to tank, like some tanking claims.

0:02:54 Andrew: This lawsuit is, is amazing, and uh, and why don't we dive right in and give it the opening arguments treatment, shall We well

0:03:00 Thomas: Yeah. With that teaser. Yeah. Let's take, go to your deep dive.

0:03:05 Andrew: I think we should give some background here, right, because I know we have a percentage of listeners who do the "I don't care about sports ball," we also have a percentage of international listeners for whom football means soccer, um, I want to tell you, if you are here for the law content, stick around, because uh, this complaint is super interesting, it's really well pled, yeah

0:03:25 Thomas: Look, when we cover Paul's graph, it's not because we're really into trains.

0:03:31 Andrew: I love it, I love that

0:03:34 Thomas: Don't be turned off anti-sports ball people. This is good law stuff.

0:03:37 Andrew: Let me give you, if you're an anti-sports ball person, let me gave you a minute's worth of background on the National Football League, so that you have some understanding of our ultimate evaluation of this lawsuit, which is, because this is that, again, a lawsuit lays out the allegations that a plaintiff intends to make, right, so the, the NFL teams will have an opportunity to conduct discovery and rebut that information. We have to go with what we know.

I will tell you, from reading the lawsuit, the NFL has to be terrified, right, here's the best comparison for listeners, even those who were not up on the NFL, may remember the case that former San Francisco quarterback Colin Kaepernick brought against the NFL, alleging that he was blackballed for kneeling during the national anthem, them uh the NFL had to settle that lawsuit back in 2019, that was confidential, as you might expect, their NDA, so we don't know on what terms, but nevertheless, right, that was, that was a, a meritorious, this is a much, much stronger case, uh, from my assessment at the outset, uh, than the, the Kaepernick lawsuit, so, um, it will also probably ultimately be

0:03:59 Thomas: Wow.

0:04:53 Andrew: Settled, right, because uh, Flores doesn't have a job right now, and um, as, as we go through, he has only ever had a professional job in the NFL, with uh, prior to being the head coach of the Miami Dolphins, uh, he worked for the New England Patriots for more than a decade, um, we'll talk about why that bridge is probably burned, but here's what you need to know, um, Brian Flores was hired in 2019 to be the head coach, right, the guy running the Miami Dolphins, the Miami Dolphins are a team you may have heard about as a casual or non-football fan, they have a storied history, uh, but they've been not good for two decades

0:05:09 Thomas: Yeah. Yeah, a storied history, but a not storied present.

0:05:28 Andrew: Right right Exactly right, they've made the playoffs twice in the past 20 years, both times they've been crushed in the first round, including once by my Ravens, um, and they're also in that truly bad spot as a football team, where they're mediocre every year, right, so never bad enough to pick first overall and get a, you know, game-changing player in the draft, but not good and not getting better, right, so, um, they're churning through coaches, as you might expect a team that's not good, and they hired Brian Flores in 2019 to a five-year contract, uh, he went five and eleven that first year, would have put a pin in that, that's bad, um, but then uh, went surprisingly ten and six and nine and eight each of the next two years, um, as far as I can tell, in the history of the modern NFL, the, the integrated NFL since 1978, um, that's never happened, where, where a head coach has had back-to-back winning seasons and been fired anyway, and part of that is um, the, the way that the NFL playoffs work, if you are a winning team, you have a very, very good shot at making the playoffs, um, and the Dolphins were looking, they were on the outside in both of the past two years, but there were scenarios under which, with those records, 10 and 6, 9 and 8, they could have made the playoffs each of the last two years, he gets fired anyway, um, if you want to put that into context, over the past 20 years they've had one season with more than 10 wins, and only two others with 10 wins, right, so in other words, Brian Flores has, is tied for second

0:05:45 Thomas: Yeah yeah, one of the best coaches

0:07:07 Andrew: Best, yeah It did, the last, in the last two decades, yes, their non-fluorescent years look like this, seven wins, six wins, six, eight, eight, seven, six, seven, seven, you get the picture, right, six to eight wins a season, the guy comes in, uh, wins five asterisk, ten, and, and nine, and they fire him, um, and, uh, has said, you, you fired me because I was black, and uh, and Miami has said, we fired you because you didn't collaborate well with the organization and we wanted to go in a different direction. And these are usually hard cases to prove because

0:07:08 Thomas: In my history.

0:07:18 Thomas: Yeah hmm. Yeah

0:07:43 Andrew: There are so few jobs, and because it's difficult to disprove, the way, when we talk about the causes of action, the burden shifts from the employee back to the, the employer, back to the employee, once the employer has given a reason for firing you that is not on the basis of a protected class, it's then your burden to show that that justification is pretextual, in, right? Other words, if it's 50-50, don't carry the day, right, and so if it seems like, like, you okay, well, maybe, but there was also a justifiable reason that, and we're to talk about how those claims are evaluated in more detail, but you just need to know going into this, these are typically tough claims to prove.

0:07:44 Thomas: So

0:08:34 Andrew: On Flores' side, here are some pretty brutal statistics. So I'm going to kind of give that, and then we'll get into our typical OA reading the claim, you need to know the National Football League is 70% black in terms of the players on the field, coaching positions are almost always filled by former players, right, and, in the NFL when they aren't, they're filled by formerly, former college officials.

0:08:57 Thomas: So naturally, coaching should be around what? 70% black head coaches? What do you think? This is going to be somewhere. That's my guess. Thomas takes the football exam.

0:08:57 Andrew: Yeah uh it yeah Thomas takes. Well, you're off by a lot.

0:09:08 Thomas: So 50%.

0:09:09 Andrew: It's 3%. It's one out of the 32 NFL teams. Yeah, Level coaching positions are also overwhelmingly white, so right? We're talking about head coaching positions. You often promote offensive coordinators, defensive coordinators. Assistant head coaches, quarterbacks, coaches and all those positions are overwhelmingly white as well. So Brian Flores has very plausible claims against the Dolphins for firing him and against another team, the New York Giants, for failing to hire him. Right. Because the Dolphins fire him. He's obviously the best candidate out there. The Giants fired their coach after two years of terrible performance. And they brought Flores in for an interview, which, you know, we'll put a put a pin in that.

0:09:11 Thomas: 3%. It's

0:10:02 Andrew: So that's kind of the thesis of the case. The NFL has acknowledged publicly it needs to do much better. And so I guess that's the last kind of piece of information that you'll need as we go through the lawsuit, about 20 years ago, the NFL, as part of publicly acknowledging, hey, we are not doing a good job of making sure that the leadership positions reflect and are fairly selected from the pool of otherwise talented candidates. So they implemented something called the Rooney Rule. And the Rooney Rule says, and it's been modified, but it now says this, for high level positions that we talked about, right, the general manager of the team, that's who makes player personnel decisions, right. Right. The head coach, that's who makes the on-field decisions, the assistant head coach.

0:10:48 Andrew: The offensive coordinator, the defensive coordinator, the quarterback's coordinator teams must interview at least one black person. For the head coaching job, they must interview at least two minority candidates, at least one of whom must be black and at least one must be in person.

0:11:05 Thomas: I've always found that to be a weird rule because that just doesn't seem like it guarantees you anything. It feels like it barely does anything.

0:11:13 Andrew: Well, and that is at the core of Flores's case that the Rooney rule is a sham, that black candidates get interviews because, you know, the rule says they have to. But at the end of the day, they're not taken seriously. He's got some good evidence on his side with respect to that. All right. So now, armed with that background information, Let's read the complaint backwards. Right. That's how we do it on O.A. So you start at the signature page. Mr. Flores is represented by Wigdor LLP lead partner Douglas H. Wigdor.

0:11:21 Thomas: Yeah. Yeah.

0:11:47 Andrew: Who Yeah. Who is Douglas Wigdor? You might recognize the name. He is quite possibly the nation's preeminent employment discrimination lawyer. I will link his about page in the in the show notes. I'll summarize it this way. He represented eight of the plaintiffs against Harvey Weinstein. He represented the hotel maid in the Dominique Strauss-Kahn case. He has represented lots of high profile employment discrimination plaintiffs, including on the Obviously, he does a lot sex of and gender cases, but is very familiar with racial discrimination cases, is very familiar with suing high-profile defendants, right? Like Amazon.

0:11:46 Thomas: So not Sidney Powell. Okay. Weird.

0:12:34 Andrew: His verdicts plus settlements over his career are over a billion dollars to plaintiffs. So, yeah, is not Sidney Powell. This is a serious person who does these kinds of cases for a living. And that's the first thing you want to know. Right. This is not just somebody jumping on the chance to represent an NFL player, an NFL former head coach or Brian Flores has, you know, a friend that divorced law.

0:12:40 Thomas: Wow.

0:13:00 Thomas: A friend who does divorce law. Yeah.

0:13:02 Andrew: Exactly. Uh, and you know if you're new to the show, um, we do indeed.

0:13:06 Thomas: We read those ones a lot, those complaints and they're fun.

0:13:11 Andrew: This is not like that. So then, um, now we, we continue reading backwards before the signature page, uh, are the causes of action, right? This is what they want to prove, and the reason you read these first is because all the rest of the complaint, you can pretty much say whatever you want. When you read the cause of action, it says, "This is what I think I can prove in court." And there are four. We're going to go through each of those four. But I want to say at the outset, this is brought as a class action lawsuit, not only on behalf of Brian Flores, but on behalf of all black head coach, offensive and defensive coordinators, quarterbacks coaches, general managers, as well as candidates for those jobs. We have talked about Rule Federal Rule 23 class certification procedures on the show before, um, the interest of time, can't analyze the class claims. I will tell you, I don't think the class claims are very likely to succeed.

0:14:09 Thomas: Yeah, that's, that was what I was wondering. Cause Um, you know, we have, we've gone through this a lot. It, you usually have to be similarly situated or whatever you have to like the, the relief you want has to be similar, right? And the ways you are wronged to be similar. It feels like there'd be a lot of variability in that.

0:14:27 Andrew: That is exactly right, requirement is called typicality for purposes of Rule 23. But you have hit on precisely the two issues that I think will make this to maintain as a class action, and that is each one of these individual decisions is likely to be idiosyncratic to the individuals who were involved, right? That's not to say that there was not overarching systemic racism in the NFL. I think there almost certainly is, right. I this lawsuit goes a long way towards demonstrating that evidence. But when when it comes time, what courts care about is how can we fashion relief, right? And so the classic class action claim is an antitrust claim, Exxon right.

0:15:17 Andrew: Mobil, because of its market share, was able to overcharge everybody 10 cents a gallon for gasoline from the period January 1, 2021 through through the period January 1, 2022. In that case, everybody suffers the same injury. It's super easy. It's not super easy, I shouldn't say that. It still requires effort. But you can theoretically tell the court how you want it is to figure out everybody who bought Exxon gas over that time period and give them back 10 cents per gallon. And so I I say the 10 cents per gallon to illustrate, the relief doesn't have to be identical, but it does have to be similar, right? Because I put 10 gallons in my car and you put 20, but it does Have to be it does Have to Be substantially similar, such that the court can figure it out. Well, If you accept as true that there was systemic racism, then then what that means is some candidates who were very, very close to being hired on the merits were not hired at all. But also some candidates, who were probably a long shot anyway, became more of a longshot, right?

0:15:49 Thomas: Right. Yeah. Yeah, right.

0:16:32 Andrew: You know, figuring out where that line is, who gets access to, you know, whatever relief is awarded, I think is going to be really, really difficult. And I think the courts are going to say this is not- when you, when you combine that, you can have a class with, 40 or so members as plaintiffs. Right. It satisfies that, another requirement of Rule 23, which is numerosity. But the way in which they interact is that the court is going to saying, is this going to be better adjudicated as one class action or as 40 different plaintiff claims? And if they're all the same, right? Yeah. Oh, super. Makes total sense. Let's do this in one go. If they're all different in ways that are material, the court is likely to say, "You know what? This is probably best handled as 40" separate lawsuits.

0:17:21 Thomas: Yeah so why do you think it was filed this way then I wonder? We know that it's somebody who's really good at these cases. It's not Sidney Powell. What are they thinking?

0:17:29 Andrew: Think it is to try and introduce the evidence of the the multiple bottlenecks on on route to the head coaching job. So by including the evidence of discrimination against African-Americans in hiring as offensive coordinator, as defensive coordinator, as quarterbacks coaches think about that. We've been talking about President Biden's forthcoming pick for the Supreme Court. And one of the rebuttals to sort of the the right wing's argument of, you this must be affirmative action because look at how few appellant judges even are women of color. And the Response back to that is right, because there's a racist bottleneck in appointing women of color to the U.S. Courts of Appeal.

And one of the things, by the way, Joe Biden has done an outstanding job in his first year at office. But think about that, right? Like, so if you say we're not discriminating, as the NFL has said in the past, we're not discriminating against black people. It's just that, you know, we want our head coach to have had some experience as a, you frontline position, an offensive coordinator or defensive coordinator, that sounds plausible on its face, so you want to look at, well, okay, how, how fairly are you hiring and retaining offensive and defensive coordinators who are

0:18:11 Thomas: Yeah, yeah.

0:18:57 Andrew: Black. And the answer to that is not great, right? So, uh, understand why you would want to bring this, uh, at least at this stage, uh, as a class action, because it allows you to bring in those sort of multiple bottlenecks, um, as, as part of the argument, and it allows you to talk about individuals who aren't similarly situated in the sense of having been fired head coaches, but, like, of the one of the easiest ones to understand is Eric Bieniemy of the Kansas City Chiefs, right?

He is the black offensive coordinator for the Kansas City Chiefs. He's been there since 2018, and in his five years, and this is all laid out in the lawsuit, they've gone to the late playoffs all five years, right, that the championship game three times, the Super Bowl twice, they've won it once. That's a ridiculous record, and they've done so largely on the strengths of, of their offense, right? So it, there was no question, I think, in any reasonable person's mind, particularly, particularly any reasonable football fan's mind, if Eric Bieniemy were white, he would have gotten a head coaching job two years ago, right? So, are the two reasons that I think that it is, the two largest reasons why I think it's pled as a class action suit right now. But at the end of the day, I don't think it is going to survive as a class action.

0:20:15 Thomas: So can you tell us the order of what happens there? So when you say, oh, it allows you to bring in this other stuff, is that like later when we do discovery or that's in the complaint right now? And what's the timing of when the you're right and the class action part isn't going to work, when does that all get knocked off?

0:20:16 Andrew: Yeah.

0:20:33 Andrew: Awesome questions. So I mean that those allegations are in the complaint right now. And the question of when to move for partial summary judgment or move to dismiss is at the discretion of the defendants. Right. Right. So ordinarily, right, what you do is when you are a defendant, the first thing you do is move to dismiss the claims that have been filed against you. If you do that, if the NFL decides to do that right now, they will be moving to dismiss with respect to both class and individual claims. And that will make it in terms of the allegations that are set forth. We're going to talk about how these claims, I think, very plainly will survive a motion to dismiss. So you then kind of put the NFL back on its heels of, OK, does it want to fight against the class claims first, right, where it could probably win or but but a victory will be a Pyrrhic victory.

0:20:39 Thomas: Okay.

0:21:36 Andrew: Right. Because getting rid of the other plaintiffs. OK, all you get there if you win on Rule 23 is Eric Bieniemy should probably sue separately. Right. It doesn't prevent him from suing. And you're left with. Right, Brian Flores' individual claims, which in this case are very, very substantive. Right. I'm glad you asked that, because in a great many cases, particularly mass tort cases, which almost never survive Rule 23 class certification, the individual plaintiffs claims are not particularly large in light of what, you know, let's say giant company X has dumped, you thousands of tons of toxic waste into the water supply in a particular town, right? Well, I get together 10 named plaintiffs and they all have actual injuries from drinking the poisoned water.

0:21:47 Thomas: Yeah.

0:22:34 Andrew: It's a big deal to those plaintiffs, but the real harm to the company is if I can bring forward those plaintiff's on behalf of the 200,000 people in the town who all drank the poisoned water. Right, the the company will litigate, the I know, because it did this for a long time, I'm not proud of it, uh, but I did this in these kinds of cases for a long time. The company will hire a uh a Covington and Burling type firm, like me, uh, to go in and argue that this is not cognizable as a uh as a Rule 23 class action, uh, and then uh, when you, you win on Rule 23, you basically win on the case, right? Because then the plaintiff's firm is no longer looking at a billion dollar payday and getting 40% of that. They're looking at a million dollar pay day, which they'll quickly get for their clients. But now, they're, 40, 40% you, percent of a couple million dollars does not pay to litigate against Exxon Mobil or, Or, you other giant corporation for a decade.

0:22:47 Thomas: Right. Hmm. So does Eric Bieniemy have to be working with Brian Flores to be in this thing? Or can Brian Flores as part of his lawsuit just say, yeah, look at this other guy over here without, and the reason I ask is everyone's saying like, well, Brian Flores is never working in the NFL again. Is, you know, is this the kind of thing where like if he named someone else like Eric Biennium, he have to have Bienmium's permission or, you know, like what's going to be the status there? Is Bieniemy going to be kind of in trouble even if maybe he didn't consent to that or?

0:23:49 Andrew: Yeah. Right. So the answer is that these allegations are raised by Flores on his own behalf and do not indicate consultation with or permission by Eric Bieniemy to have raised them. And they come about in a couple of different ways. First Right. Is it comes into play with respect to the Giants pattern and practice of hiring. So, right? For example, this is paragraph 158 on page 40 when it's talking about who the Giants have hired as their head coaches. And spoiler, like the Giants have been that if you look at them on Wikipedia, the post 2017 period is described as it's something like, you know, return to disaster or something like that.

0:24:55 Andrew: Right. Like it's they have not been good since 2017. So they interviewing two highly qualified black candidates. He was fired two years later, and paragraph 158 says the Giants could have tried to lure away Eric Bieniemy, whom many considered to be the best head coach prospect on the market. That would not be hard to demonstrate, by the way. Right. Like you could just put ESPN writers on the stand or have the court take judicial notice of all of the articles that, you know, said, hey, maybe the Giants will hire Eric the enemy. Right like that. Those got written. Instead, they hired Joe Judge, who was not very good and got fired just this past offseason.

0:25:45 Andrew: So first, it comes into play with respect to the Giants. Second, it come into play in a rather long section begins with talking about the fate of various African Americans in the NFL, and particularly under the Rooney Rule. And this starts on the next page, page 41, with Detroit hiring Steve Mariucci. Like, it was known the fix was in, so they could not get, they tried to line up five minority coaching candidates and all of them were like, man, everybody knows you're hiring Steve Mariucci. So why am I going to come in for a sham interview?

0:26:29 Thomas: Oh, that's interesting. If they decline the interviews, does that kind of leave them stranded with the Rooney rule wow

0:26:35 Andrew: It will. And what happened was the NFL fined them the amazing sum of two hundred thousand dollars, you know, so not not not a huge deterrent for a billion dollar organization that says, you know we definitely we want to bring in our guy um so it talks about Steve Mariucci um then it talks about uh Jim Caldwell uh being uh fired after winning seasons uh in Indianapolis uh and replaced with white coaches uh talks about uh how uh the Arizona Cardinals uh treated Steve Wilks uh David Culley Chris Richard Terrell Austin um Terrell Austin is a super interesting case. And, you know, I'll just sort of read that really quickly. He's been a collegiate NFL coach for more than 30 years. He's Been Interviewed 10 Times for Head Coach Positions. And following the 2016 hiring cycle, Austin said that only two of the four interviews he engaged in, quote, felt like legitimate interviews where he had a, quote.

0:26:42 Thomas: Yeah

0:27:36 Andrew: Legitimate shot at the job. He was asked in a follow-up question whether saying two of the job interviews were legitimate meant he believed the other two were quote Rooney rule interviews. And he answered, well, you know, take it however you want. And so then there is a lengthy section. It's subsection H beginning on page 45 talking about Eric Biennium. So to answer that question, no, was not done with his consultation. Does not. I don't think this ends Eric. You know, just because you're mentioned in these Paragraphs is not going to be construed against you. I can promise you that, as you read it, that this has not been the first time Bieniemy has thought about this. Um, that's that's how it shows up. So we'll be evaluating uh Flores's uh arguments that he was discriminated against in being fired by Miami and failure to hire by the New York Giants. So uh let's take a look at those four causes of action and how they would apply in an individual capacity.

Claim number one is for Section 1981 discrimination, that's 42 USC 1981, um, that is similar to, it is similar too, in the sense that it is on the opposite page of 42 USC 1983, right, where we're very familiar with hearing 1983 claims. Um, but 1981 claims do not have to be alleged

0:28:06 Thomas: Yeah

0:28:58 Andrew: Against a state actor. You can allege 1981 claims against private actors here, right, the NFL teams. And it says that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, b parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. Make and enforce contracts includes the making, performance, modification, and termination of contracts, the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship, and the rights in the section are protected as against impairment by non-governmental discrimination. So in other words, when you are negotiating with a team for an employment contract, that can be covered by 42 USC Section 1981.

0:29:47 Andrew: And for a very long time, now that is much more specific, right, than employment discrimination claims generally, right? Because this only applies in the instance of race, and it only applies to the right to contract. But for a long time, where you had that, you case of employment discrimination on the basis of race, practitioners would bring Section 1981 claims alongside their Title VII of the Civil Rights Act of 1964 claims, because the Section 1981 has a longer statute of limitations. There are no caps on plaintiff damages.

You can get punitive damages, um, and uh, there was a, the same operative standard of proof changed in 2020, very little known, uh, we didn't even cover it. 90 decision from the Supreme Court in 2020 called Comcast versus National Association of African-American Owned Media, uh, like I said, 90, no, decision that said under Section 1981, the plaintiff must prove that race was the but-for cause of their injury? In other words, that if they were white, they would have been hired. This in Civil Rights Act cases, in cases brought under the Civil Rights Act of 1964, you only need show that race was a motivating factor.

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0:35:29 Thomas: It seems so hard to prove that for sure, 100, like in this coaching situation, for example, you know, like, how do you prove that that it only is because the person is black? Yeah.

0:35:40 Andrew: Really hard and it allows the the defense attorney to go to the jury and say, I know that there is this email that, you know, says X. Right. And and and this really came about. It's the reason for the adoption of the motivating factor standard in the in the Civil Rights Act cases, because you would have prior to that change, you would Have cases like, well, yeah, I did say, like, I would never, you know, Yeah. Did we look at her more unfairly because she was a woman? Yes. But at the end of the day, we didn't you fire her because she was a woman, we fired her because, you she was disruptive and didn't fit in with the culture and, you know, all of that kind of nonsense. And so reducing the standard to motivating factor was crucial to women beginning to win those cases.

It doesn't make it it impossible to win, right, it, the key question is, would questions, would the Dolphins have fired a white who went 10 and 6 and 9 and 8? Again, a challenge, but but that's the reason that it's brought. I think typically you list your strongest cause of action first. I don't think they did that here.

I think the stronger claims are counts two and three, which are the violation of the New York State Human Rights Law and the New York City Human Rights Law.

0:37:07 Andrew: And although those cover, those are wide-ranging anti-discrimination statutes, so they cover harassment, they cover workplace accommodation claims, all of that sort of stuff. So they're much, much broader than just employment discrimination. For unlawful employment discrimination, they're essentially the same. You have to show four things. Number one, membership in a protected class. Number two, qualification for the position and satisfactory performance. Three, adverse employment actions. Well, that's not hard to show here. And number four, that such adverse actions occurred under circumstances that give rise to an inference of discrimination. So that's what this complaint is set up to do, right? You might look at that and go, yeah, well, those four things seem to be very, very clearly met.

0:37:56 Andrew: And that's right. That's why I think this case will survive a motion to dismiss. As I mentioned, what happens, alleging those four factors is enough to say, okay, maybe there is wrongful termination here. Now, we go through and then ask the employer, employer, okay, why did you terminate this person or why did you fail to hire this person? So that is a burden-shifting argument. The employer has to meet their burden of giving a non-discriminatory justification. That may be harder than it seems, Again, in the Flores case, right?

But once they give one, right, well, you know, it didn't fit in with the culture, and you know, then the burden shifts again, and the burden shifts to the plaintiff to show that that reason is pretextual, right, that, yeah, they're saying I don't fit in with the culture, but you can infer that that's not the reason, because let's look at the history, and let's look at the way that they have systematically treated uh white candidates for these kinds of jobs versus black candidates for these kinds of jobs.

And then, right, it's up to the jury to decide whether they think that it is more likely than not that those reasons are pretextual. Now, the bad side is, notice I carefully used that phrase, more likely than not.

0:38:31 Thomas: Yeah.

0:39:20 Andrew: If it's 50-50, if you cannot decide, tie goes to the runner. Tie goes to The Employer.

0:39:27 Thomas: Who's the runner? Oh, okay, the running back. Geez. They get wow. Weird.

0:39:30 Andrew: That would be an interesting

0:39:33 Thomas: Rule.

0:39:33 Andrew: Rule. Um. But if you believe it is ever so lightly, you know, it's 51, 49, that, no, I think maybe, you you didn't get along with everyone, is um, uh, less of a motivating factor in this case uh than the color of your skin. And and again, you that's not hard, you, right, put on evidence of, you that quarterback's coach that everyone hated, right, and You get 30 players to come in and be like, man, yeah, nobody Could stand that dude and They're like Um, did did you happen to notice the color of his skin? Yeah, he was a white dude. Right, this is as we step beyond the NFL for a minute, right, this is the kind of advice that I I give to my clients all the time, when you are building a business, when you are establishing corporate policies, that it's not just enough to have a policy, but you need to show that that policy is equally and fairly applied across all of your employees, right?

And I've given the example of a real-world case that to me, where where the prospective client said, fired this guy not because he was black, but because he was late. And he was late 13 times in a one-year period. And our employee handbook says, if you're late five times, we have the right to fire you.

0:39:34 Thomas: Yeah. Mm-hmm. Yeah. Yeah, yeah.

0:40:52 Andrew: And I was like, great. How many other people have you fired for being late? And he said, well, I don't know. And then I walked him through the the process. And I'm like, look, so you have to do more than just say, I have the legal right to do this. We have to look at, you apply that policy?

0:41:06 Thomas: If some white dude is late every day and you don't fire him, then as I have an eye worked for that person.

0:41:10 Andrew: And as it happened, there was a beloved long-term, it was a Beloved Long-Term Staffer, white woman, who was late virtually every day. Right. And now and again, reasons for it. Right. Like they said, yeah, but everybody loves Clara.

0:41:23 Thomas: There you go. Right?

0:41:28 Andrew: And, you know, she's right. And I'm like, I get that. But the point is, is that you waive the exception for the white person. You didn't waive it for the black person. And a court is really not going to look very favorably on this. This person ultimately hired somebody else. Uh, my my pitch was uh, You can give me a retainer, we can try and and try this case, but but I think you're gonna get killed, uh, and my recommendation is that you settle. They, uh, didn't like that recommendation, so I don't know what happened, I didn't, I didn't track the rest of, but it, I continue to believe, I mean, sort of how I try and I try and practice what I preach on the show.

Um, so uh, the fourth claim, uh, is the New Jersey Law Against Discrimination, right? Because again, remember, uh, this involves both the New York Giants, uh, and also, uh, the the Miami Dolphins. Um, the New Jersey Law Against Discrimination, uh, has slightly different characteristics. You must show that the the plaintiff was a member of a protected group, that right? Plaintiff's job performance met the employer's legitimate expectations, right, so legitimate expectations versus qualification for the position and satisfactory performance, pretty similar, but slight difference.

0:41:29 Thomas: Yeah. Wow.

0:42:38 Andrew: Three, that they were terminated, and four, that the employer replaced or sought to replace the plaintiff, and, not going to be hard in this case to show that, but again, again subject to the same kind of burden shifting analysis. So we're getting to, I I told you to put a couple pins in, what kind of facts does, uh, Brian Flores, uh, think he's going to be able to show, uh, that, uh, whatever justification, uh, that these football teams give for firing him and failing to hire him is mere pretext. There's the big one. And it's on page 38. It's, it's multiply referred to throughout the lawsuit.

We've talked about this before, but this provides another good non sports ball lesson that you're learning here. We've talked about what do you do when you have a great smoking gun document. The answer is you write the lawsuit like this, right, the the smoking gun document, the smoking gun document appears in paragraph one, it appears on page 38, it appears a couple of times in the middle, right, like it is, yeah, you ride those facts, uh, because the that particular document is so good for your side. So what is that smoking gun? Works like this.

We, so, talked about the New York Giants head coach Joe Judge just finished up a season in which the Giants went 4-13. That was on the heels of going 6-10. So his career record as a head coach is 10 wins, 23 losses. And you probably don't need us, even if you're not a big football fan, to know that that's real bad, right?

0:44:09 Thomas: Yeah, I don't think there's like an international sport where that losing's the thing you do. I don't know the rules of cricket. That's a complicated one, but I'm pretty sure you don't try to lose in any game. So 10 and 23, not good.

0:44:17 Andrew: Yeah. Yeah. Two-thirds of your games, yeah, uh, so so they fired him, and right then the Rooney Rule kicks in, right, under the Rooney Rule, the new Giants general manager reached out to Brian Flores and said, hey, we want to interview you. And now here the timeline is important, that was on Sunday, January 23rd, and then they finalized, they're like, yeah, okay, OK, why don't you come in? Because remember, at least one has to be in person. Come in in person on Thursday, January 27th. The next Monday. Later, right, that afternoon, Brian Flores got a text message from perhaps the most famous slash infamous person in the entire NFL.

0:44:55 Thomas: Yep.

0:44:55 Andrew: Yeah. Maybe Jerry Jones. But but the head coach of the New England Patriots, Bill Belichick. I Right? Want to pause for a second here. Even if you know kind of generally who Bill Belichick is, often referred to as Bill Belicheap, Belichack is the head coach of the only other team that Brian Flores has ever worked for in his professional career. Year. Patriots hired him as a scout in 2008 out of college. He was promoted eventually to defensive coordinator. In 2018, he was the defensive coordinator when the Patriots held the Rams to three points during the Super Bowl.

0:45:31 Thomas: Wow.

0:45:32 Andrew: And again, if you're thinking soccer, you're like, well, he held them to three coins. He Must be terrible. Three points is tied for the fewest points ever allowed in a Super Bowl, okay. So, He's the defensive coordinator of the Super Bowl winning team that had the best standout defensive performance ever. Um, and so not surprising, uh, that the Miami Dolphins hired him in 2019, was a fantastic candidate. Um, put a little asterisk next to that, we're gonna get back to that one, we we talked about that first season. Or we teased that first season. But so that's Flores's history. Ten plus years with the Patriots, hired by the Dolphins. And then out of the blue, your ball, you know, your boss, Brian, Bill Belichck, texts you out of the blue on Monday. I'm going to read the text word for word. Sounds like you have landed, congrats, uh, did you hear something that I didn't hear, Giants, and then it's

0:45:36 Thomas: Yeah. Yeah. No.

0:46:31 Andrew: A bunch of question marks and exclamation point, right, and, uh, and then Flores says, yeah, I I interview on Thursday, I think I have a shot at it. Belichck says, got it, I hear from Buffalo and NYG, that means the New York Giants, that you are their guy, hope it works out if you want it to.

As a slight note here for our non-football fans, um, Brian Dayball, the guy that the New York Giants ultimately hired as their head coach, was the offensive coordinator for the Buffalo Bills, uh, Florist has zero connection to Buffalo whatsoever, right, so Florist responds in two ways, the first is, you know, he's just reading, it's like, you know, your your your boss is like, man, I hear you're the guy, you're like, what, you know you're calling out to your wife and kids being like, Belichick says that I'm the guy. And then you look at it. So he first writes back, that's definitely what I want. I hope you're right, coach. Thank you. Then a minute later, he follows up with, coach, are you talking to Brian Flores or Brian Dayball? Just making sure. That's a hard message to send.

0:47:10 Thomas: Yeah. Oh, no. Yeah.

0:47:34 Andrew: Yeah. And then there's a delay. And then Belichic replies, Yeah. Yeah. Sorry, I effed this up. I double checked and I misread the text. I think they're naming Dayball. I'm sorry about that, BB. By the way, none of his previous texts have been signed BB for Bill Belichick. This seems like an awfully crazy mistake for somebody to be late. It's not like Flores is next to Dayball in your, in your right, right, um, could there be shenanigans afoot. I don't know.

0:47:38 Thomas: New phone. Who dis?

0:48:05 Andrew: Never think Brian but I mine sort by uh last Name.

0:48:03 Thomas: No. Wait, aren't they both named Brian? What? Yeah. You. You're telling me you think it's crazy that someone just has someone in their phone named Brian, because that's I do that all the time. That's that's not at all unexpected.

0:48:15 Andrew: Okay I never do that but fine, okay. Okay, well, grandpa, grandpa, uh,

0:48:24 Thomas: But like, what's your alternative theory that he made the mistake on purpose? I don't get it wow

0:48:24 Andrew: Says I I cannot begin to think of how it would advantage him, but I can think that if there were an advantage to be gained, Bill Belichick would, would search for one. So in any event, the important part here is Belicic texted this to Brian Flores on the 24th. Flores was scheduled and did go to his interview on the 27th, right, three and a half days later. And then, of course, that on the 28th the Giants hired Dayball, just like Belichic said he would. Um, so that looks, looks super duper bad. Um, and you are going to hear testimony uh from Bill Belichick.

Um, the New York Giants are gonna have to explain um how somebody got that information ahead of time uh if it was information yeah right Um, and so uh, incredibly, um, if you go to page 40, this is paragraph 160. This is not the first time that Brian Flores alleges that that he was not taken seriously in an interview. Here what he describes is, I don't even more disturbing. Right. This is 2019. Flores was scheduled to interview with the Denver Broncos. This is the same year. Right. He is the number one candidate out there. They're

0:49:00 Thomas: Yeah before interviews were even done yeah

0:49:41 Andrew: He's interviewing with the Denver Broncos, who are very similar to the Miami Dolphins. Right. Storied franchise. Not lately. Broncos then general manager John Elway, president and chief executive officer, Mr. Ellis and others showed up an hour late to his interview. Quote, they looked completely disheveled and it was obvious they had been drinking heavily the night before. It was clear from the substance of the interview that Mr. Flores was interviewed only because of the Rooney rule, that the Broncos never had any intention to consider him a legitimate candidate for the job. Shortly thereafter, Vic Fangio, a white man, was hired to be head coach of the Broncos. That is absolutely 100 percent relevant testimony. We will hear from, may be sealed, but, but if the case progresses, right, they will get information from John Elway. They will seek his emails back and forth with the rest of the Broncos team. Um, and it, it is hard to imagine that if that conduct occurred, uh, that there aren't emails that are beyond damage.

0:49:41 Thomas: Yeah wow yeah

0:50:43 Andrew: Yeah, like what will come through is, I, sorry, running, running late for the nonsense thing to, we have to, you know what. I mean, like, it's just hard. Part of how plaintiffs in these cases demonstrate a course of conduct is through gathering data. So we've talked about some of the broad level, right? Only one out of 32, uh, head coaches, uh, is black. Um, this begins, uh, paragraph 112 on on page 26. Um, 1978, 16 teams have fired their head coach after a single winning season. Okay, so when measured over all the teams that have fired there had coaches, that's three, three percent, right. It never happens, right. You, you don't fire a guy after he wins more than he loses. However, of those 16 head coaches who have been fired, four of them are black.

0:50:49 Thomas: Yeah yeah

0:51:38 Andrew: Um, even though black men held only a small fraction of the head coach positions during that time, an astounding 25 percent, uh, of those, of that tiny group that were fired just happened to be black. This statistic, now I'm reading from from paragraph 112, is even more remarkable given that there have only ever been 17 black head coaches who Have coached a full season. Four of them were fired after a winning season. Uh, and only 7% of white coaches have ever been fired after winning season, um, there's more evidence. Nope.

0:51:55 Thomas: Geez not good numbers yeah Yeah.

0:52:07 Andrew: Um, in the 20 years since the Rooney Rule was passed, only 15 head coaching positions have have been filled by black candidates, despite 129 vacancies, uh, that's 11% of the vacancies in a league where, again, 70% of players are black. Um, and when black coaches are hired, they are given a shorter leash than white candidates. Um, so for example, of the 10 black head coaches hired, uh, since 2012, zero of them still have their job today. A quarter of white coaches hired over that time period still have their job. Black head coaches get fired an average of two and a half years. White head coaches are fired on average after three and a half years on the job. So, as the, as the lawsuit puts it, I think, well, but another way white head coaches Are afforded an additional entire year to to establish themselves relative to black head coaches.

0:52:58 Thomas: Jeez. That's a whole season, which is very significant.

0:52:59 Andrew: Yeah. Yeah, absolutely. And it is, it's a season to, right, continue to develop and sync the offense, change personnel, implement your strategies at the draft, all of that. Right. And what this is doing, and the reason that I'm reading this is these are closing doors on pretextual objections that could be made. That's why these numbers are significant, And right? Let's close this door. Unsuccessful white head coaches, that is white head coaches who gets fired, routinely get second and third chances in critical positions, including as head coach or offensive or defensive coordinator. You see that all the time, white coach gets fired, gets hired as an offensive coordinator somewhere, gets

0:53:07 Thomas: Yeah. Turn things around.

0:53:42 Thomas: Yeah,

0:53:42 Andrew: Rehired as a head coach in a couple of years. So according to a 2021 NFL diversity and inclusion report, since 1963, 116 white individuals have been hired as head coach or coordinator after an initial head coach opportunity, right? So retreads, 117 white, 21 persons of color second chances. The same report noted that only one person of color has ever gotten three chances whereas 15 white men have gotten three chances and two of those 15 have gotten four chances uh again and again kind of back to the well of well you know maybe the fourth time is the charm um and again that however you will but the fact that um it is never uh the black guy who gets the third or fourth chance.

0:53:43 Thomas: Yeah,

0:54:33 Andrew: Probably pretty significant. There's one more door that we have to close. And this, I think, will make sense of a fact that you asked me about right before we started the show. And I've been saying, put a pin in that ever since we started. And that is, Miami is going to go, hey, we hired you in the first place, right?

0:54:51 Thomas: Yeah.

0:54:51 Andrew: Some of my best friends are black, right. Right?

0:54:54 Thomas: Some of our best fired coaches are black. Yeah oh

0:54:56 Andrew: The allegations, right? And again, they're allegations, but going to read them to you. The allegation is, yeah, you hired me to lose a la Major League. And so I would lose for a couple of years, help you get some super high-level draft picks, and then you could bring in a white guy with all of the uh good draft picks to win, right? Doesn't, I'm filling in that second part, but that is key to this allegation. So, right, what it says beginning on paragraph 133, uh, was that uh Brian Flores was told to tank, right?

That is, to intentionally to lose, by the Dolphins owner Stephen Ross. Um, so that uh they could get the first pick in the draft. Um, I would point out that this is an incredibly plausible thing to say, right? Recently, right, we've had the uh the you know the suck for luck drop, right? Like it, no lottery in the NFL. So let's make this explicit for our non-sports ball fans. Um, in the NFL, uh, you can trade the pick, so so it's not always this way, but but the baseline rule is the team that finished last the previous season drafts first, the

0:55:17 Thomas: Wow.

0:55:49 Thomas: There's no Lottery in the NFL, right?

0:56:05 Thomas: Yeah.

0:56:05 Andrew: Next season.

0:56:06 Thomas: Some other sports, in an effort fight to against the impulse to just lose intentionally, do something like say the the top four picks will be a lottery for the bottom for teams for something, as an example, just so that, you know, it gives you less incentive to like tank down to the bottom because you don t

0:56:24 Andrew: Yeah. And we've covered the MLB lockout and that is being floated in Major League Baseball right now. It's some kind of lottery to deal with the very obvious problem of teams tanking in Major Week Baseball. So the allegation that you were brought into tank, I made the kind of joking reference to Major League. It's comical and cartoony in the movie.

0:56:48 Andrew: This is a real thing that teams do. So this is not an implausible allegation. Next, right, same paragraph. During the 2019 season, Stephen Ross told Mr. Flores that he would pay him $100,000 for each game lost that year. Year, then when the Dolphins started winning games, doing no small part of Mr. Flores's coaching, Mr. Flores was told by the team's general manager, Chris Greyer, that Steve, right, Steve Ross, the owner of the team, was mad that Mr. Florez's success in winning games that year was compromising the team's draft position. Okay, when you name, so this is, you asked that excellent question about Eric the Enemy, when you say I was told by Chris Greyer that X, you have talked to Chris Grayer, right, and that is somebody uh who is prepared, is

0:56:48 Thomas: Have

0:57:37 Andrew: Not you this as a shock, uh, this is somebody who is compared to come in and testify. Oh, yeah. Um, I

0:57:43 Thomas: No, so there's no like paper trail necessarily in this that we know of. It's just testimony.

0:57:47 Andrew: Do not know, right, so but, and it's it's worth pointing out, right, so right now these are, it's not even testimony, this, these are allegations. They could be made up. It is up to uh the defendants to rebut those allegations, right, but it is also uh up to a discovery process to see if they're true or not. So, you right now, when I, when I read that between the lines, I don't think Brian Flores has a document that says we'll pay you a hundred grand. Does that mean that there isn't an email, right, from Steve Ross to somebody else saying, I even offered that SOB 100k to throw games and he won't do it, right? This is terrible. Uh, we're not going to be able to get X player in the draft now because he keeps winning in the season, we'd like to lose,

0:57:49 Thomas: Hmm. Yeah. Hmm. Yeah. Or two other people talking about

0:58:37 Andrew: Yep, and you will be entitled to all of that discovery that's that's what, what, what comes up assuming that they do not settle immediately. So, flores his argument is that Dolphins brought me in to to lose, I won instead, uh, 19 games over the last two seasons, they fired me, everybody should have been racing uh to uh to come hire me, and instead uh the Giants predetermined that they were going to hire somebody else, Brian Dable, and they only brought me in because of this formality of the rule. By the way, I have that in black and white, that at its core is pretty good case, and and and the problem is that anything that is likely to be nuanced around it, um, uh, is likelyto require discovery where we'll get even worse evidence, right, and, uh, so I, I think you are correct, uh, that the

0:58:37 Thomas: It or yeah. Who knows? Yeah. Assuming they don't settle immediately.

0:59:37 Andrew: NFL is going to move very, very quickly uh for an an immediate settlement to this case. I cannot imagine that. Yeah.

0:59:42 Thomas: But that's interesting. Do you think that Flores would want to settle?

0:59:48 Andrew: So This is really going to push him and his lawyer into a difficult position. Right. Because it, it reminds me of, you the conversations that that we had with respect to the Kaepernick lawsuit. Right, which we covered here on the show, um, I would say, is, you you have to balance out, um, care of yourself, uh, versus, you know, making real change, uh, in the sport. Um, and Brian Flores has has you three years as a head coach, uh, and, you a decade, uh, on the the coaching staff of the Patriots. It He's not eating you salmon out of the can right now and ramen noodles, uh, but he's not super wealthy.

1:00:01 Thomas: Yeah. Yeah.

1:00:27 Thomas: And he's not getting an NFL job again, that's not happening.

1:00:29 Andrew: Yeah, that's it, right, that yeah, That's it. So, and his lawyer, right, his lawyer's job is to say, I represent you. And, you know, they're offering X, which is, you know, 80% of what we could get a trial or 90% of what we can get a trail. Like, that. It's hard for us to do much better than this, right? It's going to put them in a tough spot. That also adds, I think, and I hadn't kind of put two and two together until summarizing it for you, one of things I love doing the show with you about. It that's another reason to put the class action claims in in the lawsuit, right? They're plausible, and it prevents you from settling on day one, right? Like, you can say, oh, yeah, well, you know, our our settlement price on day 1 is, you know, our actual settlement price times 40, right? You know, it is, oh, yeah, you want to you want going to settle the entire law, you sure? You know, uh, 40 head coaching jobs multiplied by, you know, right?

1:01:29 Thomas: Okay.

1:01:29 Andrew: So it it also gives you leverage, uh, against the NFL, making this go away very, very quickly. So, I shouldhave added that back in that that discussion as well. So that's where where we are.

1:01:41 Thomas: Right, well, great coverage there, Andrew, uh, very serious lawsuit, merit to survive dismissal, your opinion. Any other predictions you want to lay down here?

1:01:48 Andrew: What? Well-pled lawsuit, horrible facts for the NFL. They are, whatever you see public facing when they send their flacks out onto ESPN to to deflect, they are terrified of this lawsuit, and, uh, it is going to be priority number one, from top to bottom, among the ownership group, uh, to make this go away as quickly as they can. So, and again, real person here, in, I mean, you know, I'm not A, I'm not a Dolphins fan, yeah, right, absolutely, uh, but you read it and you're like, nobody should have had to have gone through what Brian Flores went went through and what lots of other black candidates have gone through, and so I'm, I'm really glad that we had the opportunity to cover it.

1:02:15 Thomas: Lots of real people. Yeah. Oh, yeah.

1:02:29 Clip: And thank you, Let's go!

1:02:31 Thomas: Now it's time to thank our new patrons on patreon.com/law getting all the goodies ad free episodes each and every episode uh the q a audio the law novel movies coming at you that's we where we analyze the law the bad law in movies and have a lot of fun that's coming at ya in another couple weeks here so let's thank our patrons I'll start us off thank you to Senta, Jason Cunnington, Mark Catt, Mark Norton, Deacon Johnston, and Darwin Is Coming. And your turn, Andrew

1:03:02 Andrew: And a big thank you to Dustin Dano, Rene Steelman, derek r kentrup, Stephen Bowden, Sam, and Fraser Jones. Thank you all so much for supporting the show. That's over at patreon.com/law, and, uh, you know, get in, buck an episode, we will read your name no matter what it is.

1:04:09 Clip: Of this firm has ever failed the bar exam. No kidding.

1:04:14 Thomas: And now it's time for T3BE. Thomas tries to be ethical.

1:04:18 Thomas: Each week I take a bar exam question, but for the past, I don't know, month or so, we're doing ethics questions because you also have to pass the ethics test to become a lawyer. These are pretty easy. I'm surprised at how ethical I am. Let's see if I continue my ethical streak.

1:04:30 Andrew: All. Right. Thomas, a state trial court judge was assigned an action that sought to invalidate a testamentary trust as violating the rule against perpetuities. The judge, we'll call him Thomas S, had no experience in his state matters and did not find the brief submitted by the parties to be helpful. Without prior notice to the parties, the judge consulted another trial judge with extensive experience,

1:04:43 Thomas: Oh.

1:04:53 Thomas: This is Judge Thomas S., absolutely. Ooh. I'm trying to cheat out the other judge's homework.

1:05:00 Andrew: Yeah, in estate planning concerning the essential aspects of the rule. The judge was careful during the consultation to avoid identifying the parties or receiving any factual information that was not part of the record. The judge then personally decided the matter. She neither informed the parties about her consultation with the other judge nor gave them the opportunity to object or respond. Was the judge's conduct proper? A. Yes, because the judge did not identify the parties.

1:05:02 Thomas: Okay, yeah, sure. Huh. Ooh, man.

1:05:31 Andrew: B. Yes, because the judge personally decided the matter. C. No, because the judge did not give the parties prior notice that she planned to consult ex parte with with the other judge concerning the matter, or D, no, because the judge neither informed the parties about her consultation with the other judge, nor gave them the opportunity to object or respond.

1:05:44 Thomas: Oh, Wow, wow. Wow. Okay. This ethic's not so easy in this case. I don't, man, I've never heard a thing about this. I can't think of any time in any media, anything, any situation, news story where it was like some improper judge consulting with another judge. I've never heard that. So part of me, and I think I've also heard you say the judges might consult each other, might converse with with one another, I think. But man, yeah, it's hard for me believe that judges have to get informed consent of the parties and then allow them to object to your consulting another judge. That doesn't, I've never heard of that.

1:06:39 Thomas: Doesn't seem likely. Who knows? Maybe it just could be there and I just never hear about it. I don't know. So the judge gave no notice, consulted another trial judge concerning the essential aspects of the rule. And so the judge is just asking about a rule. Judge didn't identify the parties or receive any factual information that was not part of record. The judge then personally decided. That seems fine to me. Seems fine. This is a tough one, but that seems fine. Leaning toward a yes answer. So judge's conduct being proper. However, it's going to be hard to pick a yes. Answer here. Here. So is it A, yes, because the judge did not identify the parties. Is that why it's okay? Is it B, yes because the Judge personally decided the matter. Is THAT why it is okay?

1:07:25 Thomas: So I'm going to set that aside and look at the no answers. C, no because the Judge did not give the parties prior notice that she planned to consult ex parte with the other Judge. I just never heard about that. I've never seen anything or heard anything where the Judge is like, Hey, FYI, I'm going to talk to another judge about this. Maybe it happens. And it's just so unremarkable that you don't hear about it, but I just, man, I have a hard time believing this is a no answer or D no, because the judge neither informed the parties about her consultation with the other judge, nor gave them the opportunity to object or respond. So, I mean, that just adds like more reasons. I Um, think I'm gone with a yes answer on this. I think I'm eliminating those those two, no answers. Really not confident on this.

1:08:10 Thomas: So thinking logically, A, yes, because the judge did not identify the parties, or B, yes, because the judge personally decided. So B would mean the judge was possibly free to identify the bodies, long as the judge personally decided it. Whereas A would suggest that that maybe the judge could have not personally decided it and it was okay as long as they didn't identify the parties. B is just really screaming out. I just, I feel like the rule would likely be that judge, as long as the judge is personally deciding, I'd feel like that would be more important, I think. You know, I I also think I'm sad that it doesn't have both components, cause I think it's probably also good to not identify the parties, but then again, like, I don't know, why does that matter that much?

1:08:56 Thomas: You I don'T think it matters, whether or not, you know, the identity of the parties you probably, you know, you dockets are like public, I think, and the, you a judge just deciding a case is free to know the identity of the parties. Like they always know, you know, before they decide. So I, I feel like B is more important. I think it would be more destructive to our process. If a judge was like, Hey, I don't know what to do on this case. Can you just decide it for me? And, uh, you don't really have the transparency of like who actually decided this. I'm going to go with B and who the hell knows, uh b final answer

1:09:35 Andrew: And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T three B E include your guests and your reasons. Therefore we will pick a winner and shower that winner with never ending fame and fortune, fame and fortune. Not guaranteed.

1:09:47 Thomas: And that's our show Thanks so much for listening really great coverage there, Andrew Can't wait to see what happens with this case And also, Poplaw coming at you on next episode, Morgan Stringer, the Cardi B defamation lawsuit as a teaser. Make sure to catch that episode and patrons get it almost a couple of days early. So patreon.com/law, if you want to hear that episode early. All right, we'll see you next time.

1:09:56 Andrew: Oh yeah until then

1:10:12 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:10:46 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.